An armada of pimps, sex buyers and ‘sex work’ activists have laid siege to Canada’s prostitution laws with court cases of various kinds. All are saying they want to see legislation more aligned with the Charter of Rights and Freedoms. They do, do they? As I write this, a parliamentary committee is also scrutinizing the prohibition of prostitution. Let me begin to guide you through the murky waters surrounding the issue.    

The “Protection of Communities and Exploited Persons Act” (PCEPA) was the response of the Harper Conservatives to a successful Charter challenge that determined some of the federal law pertaining to prostitution was unconstitutional. The 2013 Supreme Court ruling on Bedford versus Canada decided that the criminal code infringed on the rights of some prostitutes, potentially posing a barrier to their safety.

The ruling was not that legal prostitution was right for Canada. Not even the attorney for Bedford claimed, in his Supreme Court submissions, that such a change would increase general safety for prostitutes. As a matter of public interest, the Chief Justice of the court suspended the ruling for a full year to give Parliament time to come up with new laws to replace the old ones. The rationale for the delay was that the old, infirm and potentially dangerous laws were a safer bet than a sudden shift to unfettered prostitution.[i]

In an earnest response to the ruling, the then Justice Minister Peter MacKay declared that the government had “grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it.” He went on to promise new laws to “protect human dignity and the equality of all Canadians by discouraging prostitution.”

The promised legislation was tabled on June 4th, 2014, and proposed, not merely to discourage some of the prostitution-related activities but, for the first time in Canada, to make prostitution, itself, a criminal offence. Building on the government’s understanding that prostitutes were likely to be exploited persons, the legislation included provisions to shield them from prosecution, with some exceptions. In contrast, sex buyers were not to be excused at all. Mr. MacKay, correctly defended his Bill C-36 by saying, “No model that involves full decriminalization or legalization will ever make prostitution a safe endeavour.”

The heart of the legislation was the goal of reducing the incidence of human trafficking by discouraging sex buyers from funding the horrific crime. However, neither the volume of prostitution or human trafficking involving minors or adults seems to be dropping, seven years in. This heartbreaking reality put wind in the sails of MP Randall Garrison (NDP) who in the Summer of 2020, filed a motion to refer PCEPA to a parliamentary committee for review and argued, “The PCEPA review must begin right away because lives are at risk,[ii]”

Though PCEPA has not cured the ills it sought to address, one must not rush to conclude that the blame lays with the legislation, as Mr. Garrison would like you to believe. It is essential that to analyse how effectively PCEPA was implemented and enforced by the provinces. The enactment of the legislation in 2014 should have sparked a swift and supportive reaction by our provincial governments and their law enforcement agencies. But instead of embracing the protections for vulnerable women and girls, the provinces seemed to prefer the former legislation that protected sex buyers and viewed sex sellers as a nuisance or worse. Ontario did eventually react in its own fashion and allocated hundreds of millions of dollars toward the cause. In hindsight, it provides us with some important lessons from which to learn.

In 2016, Kathleen Wynne’s Liberal government consulted with a variety of experts in developing Ontario’s first-ever ‘Strategy to End Human Trafficking’ . Pleading advocates insisted that the demand for paid sex must reduced and, therefore, police should be encouraged to proactively investigate those who fund the exploitation -the men buy sex. The Ministry of the Attorney General discounted that guidance. In response, I requested that the government change the title of the document and stated, “By leaving all that money on the table for traffickers to get their hands on, your ‘Strategy’ will not even slightly reduce the volume of human trafficking crimes against women and girls.”

Tragically, my warning was validated by police reports in the years to follow. Protecting sex buyers did nothing to calm demand for sexual services. And the whirlpool effect created by the exploitative nature of the industry kept sucking in naïve girls and women.

Pimp trials got the money and the spotlight. Police human trafficking units in the Golden Horseshoe became masterful in their investigations and Crown Attorneys received specialized training for such cases. At least something was being done. But compared with other violent crimes, findings of guilt for human traffickers were achieved far less often.[iii] Even when guilty verdicts were rendered, it did not seem to reduce the number of callous young men who desired a notorious reputation and were willing to exploit young women. While Ontario courthouses remain abuzz with human trafficking trials the province is still failing in protecting adults and minors from that crime.

Holding sex buyers accountable was relatively easy in the few cases when enforcement occurred in Ontario, and the investigative techniques used were found to be constitutionally sound.[vi] They returned a very high conviction rate[v] but were unpopular with politicians at every level. In 2019, Ontario was reporting nearly double the national rate of human trafficking.[vi] The notion that Canada can preserve prostitution while successfully combatting human sex trafficking remains, at best, an unfounded theory. I suggest Ontario has proven the theory wrong at the expense of the untold number of young people who were needlessly lost in the vortex. 

I hope and pray that Ottawa carefully listens to the voices of those who deal, every day, with the carnage; that they will see the unbreakable link between the demand and exploitation.

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